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F I L E D

UNITED STATES COURT OF APPEALS


TENTH CIRCUIT
__________________________

United States Court of Appeals


Tenth Circuit

JUN 22 1998

PATRICK FISHER
Clerk

HOWARD PHILLIPS,
Petitioner-Appellant,
v.
PAGE TRUE, Warden; U.S. PAROLE
COMMISSION,

No. 98-3025
(D. Kan.)
(D.Ct. No. 95-CV-3465)

Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

Mr. Phillips is a federal inmate and a pro se litigant. He filed a petition for
a writ of habeas corpus under 28 U.S.C. 2241. The district court dismissed his
petition and Mr. Phillips appeals. We affirm the judgment of the district court.

In 1987, Mr. Phillips was sentenced in the United States District Court for
the Eastern District of Wisconsin to a term of twenty years imprisonment for
aiding and abetting a bank robbery committed with a dangerous weapon. He was
paroled in December 1993.

In March 1994, the Parole Commission issued a violator warrant for Mr.
Phillips pursuant to his reported arrest on state charges of second degree reckless
injury while armed, second degree recklessly endangering safety while armed, and
possession of a firearm by a felon. The state charges arose from an incident in
which Mr. Phillips allegedly fired a handgun during a domestic argument between
his brother and sister-in-law. At least one bullet struck Mr. Phillips two-year-old
niece, causing serious injuries. The Parole Commission later added a charge of
unauthorized use of dangerous drugs.

A parole revocation hearing was held in April and continued to August


1994. At this revocation hearing, Mr. Phillips brother testified that Mr. Phillips
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fired several shots into the air during an argument and then fled after it was
discovered his niece had been struck by a bullet. Mr. Phillips sister-in-law gave
testimony corroborating these statements. Other testimony was admitted by
affidavit which exonerated Mr. Phillips. The Parole Commission chose to credit
the testimony that was adverse to Mr. Phillips and, in September 1994, revoked
his parole, granted credit for the time spent on parole, and continued Mr. Phillips
in confinement to the expiration of his sentence, less good time. The National
Appeals Board subsequently affirmed the Commissions ruling.

In December 1994, Mr. Phillips was acquitted of all state charges relating
to the shooting of his niece. He then sought either reinstatement to parole or a
rehearing. The Commission reopened the case and took additional evidence. The
Parole Commission did not change its decision. The National Appeals Board
again upheld the Commissions decision.

The district court concluded Mr. Phillips acquittal of state criminal


charges does not require the Parole Commission to ignore the underlying conduct
if it is supported by reasonable grounds. The district court reviewed the record
and cited the evidence supporting the Parole Commissions decision. The district
court concluded the Commissions decision is well-supported by the record and
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... petitioner is entitled to no relief.

Mr. Phillips appeals, stating the issues as: (1) Whether Parole
Commission used erroneous information to revoke Petitioners Parole; and (2)
Abuse of Discretionary Power of the District Court. The gist of Mr. Phillips
first argument is that the testimony of his brother and sister-in-law was largely
self-serving and [was] rebutted by ... live testimony at the re-hearing. Mr.
Phillips also complains of the delay following the filing of his habeas petition
with the district court and notes he filed for a writ of mandamus with this court
requiring the district court to proceed. He asserts his petition for habeas relief
has been reduced to a sham, because the trial court has not acted within
reasonable time.

We have jurisdiction under 28 U.S.C. 1291. We review the district


courts decision to deny habeas relief de novo. Sinclair v. Henman, 986 F.2d 407,
408 (10th Cir.), cert. denied, 510 U.S. 842 (1993). Our case law holds that the
Parole Commissions decision to grant or revoke parole will be reversed only if it
is arbitrary, capricious or constitutes an abuse of discretion. See Kell v. United
States Parole Commn, 26 F.3d 1016, 1019 (10th Cir. 1994); Turner v. United
States Parole Commn, 934 F.2d 254, 256 (10th Cir.), cert. denied, 502 U.S. 885
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(1991). Our inquiry is not whether the Parole Commissions decision is


supported by the preponderance of the evidence, or even by substantial
evidence; the inquiry is only whether there is a rational basis in the record for the
Commissions conclusions embodied in its statement of reasons. Misasi v.
United States Parole Commn, 835 F.2d 754, 758 (10th Cir. 1987) (quoting
Soloman v. Elsea, 676 F.2d 282, 290 (7th Circuit 1982)). We cannot act as the
judges of the credibility of witnesses. See Fiumara v. OBrien, 889 F.2d 254, 257
(10th Cir.) (Appeal courts may not reweigh evidence, repass on the credibility of
reports, or substitute their judgment for that of the Commission.), cert. denied,
495 U.S. 958 (1990).

The record contains evidence fully supporting the Commissions decision.


Clearly, there is a rational basis in the record for the Commissions conclusions.
While it is true there is contrary evidence in the record, which, if believed would
operate in favor of Mr. Phillips, we do not have the power to assess the credibility
of the witnesses. As to his second claim, Mr. Phillips has failed to show his case
was prejudiced by the district courts delay. For these reasons, Mr. Phillips
arguments lack merit and we AFFIRM the decision of the district court.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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